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A Lawsuit Up in Smoke?

About States of Nebraska and Oklahoma v. State of Colorado

As you are probably aware, the State of Colorado legalized (to a certain extent) the recreational use of marijuana, and the associated marijuana industry. Legalization occurred through an amendment (Amendment 64) to the Colorado Constitution, which voters approved in November, 2012. The first stores selling recreational use marijuana opened January 1, 2014. Some people, for example, the Attorneys General of both Nebraska, and Oklahoma, have a problem with this. This is evidenced by the two states recently filing a joint lawsuit against the State of Colorado, in the United States Supreme Court, asking the court to enjoin further implementation of the Amendment and its related legislation.

Regardless of your position on marijuana legalization, this is a lawsuit which for the future of state sovereignty, must fail.

A Threat to States’ Rights?

The approximately 80 page lawsuit and accompanying brief (available at this link) claims, among other things, that the legalization of marijuana in Colorado created a “dangerous gap in the federal drug control system”, undermines Nebraska’s, and Oklahoma’s own marijuana bans, “drains their treasuries”, and places stress on their criminal justice systems. See, Complaint, pages 3-4, paragraph 7.

The lawsuit asks for a declaratory judgment stating that Amendment 64 and its accompanying legislation are unconstitutional under the U.S. Constitution, and therefore unenforceable. If the injunctive relief requested is granted, it will strike a body blow to the idea of state sovereignty. Worse, being as this action is at the United States Supreme Court already, whatever precedent which is set is going to be very difficult to overturn.

There are several reasons, however, to believe that this lawsuit will fail.

Doctrine of Standing

The first hurdle the plaintiffs must get over (and that which this article will focus upon) is that of standing. The doctrine of standing generally says that in order to be allowed to proceed with a lawsuit, a plaintiff must have some legally or equitably recognized right or interest in the subject matter. While states sue one another all the time, they do so in order to enforce their own rights. The real issue in this case is whether a state can stand in the place of the federal government, or that of a person directly harmed by the law.

I believe the answer is likely, “No”, because in this lawsuit, it is clear that Nebraska and Oklahoma are trying to stand in the place of the Federal government. That is, it is the Federal government’s (enforceable) laws which are allegedly being violated by the Colorado laws. (Although Nebraska and Oklahoma’s marijuana laws are also violated by the Colorado laws, Nebraska and Oklahoma do not have authority to enforce their own laws in Colorado.) If the Department of Justice wishes to bring an action against Colorado, that is one thing. But Nebraska and Colorado are attempting to assert the federal government’s rights at this point, not their own rights.

If, or more likely, when the Plaintiffs’ standing is challenged, they could argue they have standing to sue because as states within the Union, they have a vested interest in ensuring that all laws comply with federal law. That argument will likely fail as standing requires more than a generalized concept of interest in the subject matter. Further, if this were an appropriate basis for standing, then anytime the Attorney General of a state dislikes anylaw of another state, and can make an argument that such a law contradicts federal law, then the Attorney General who dislikes the law could sue. For that matter, I cannot see how such lawsuits could be limited to suits initiated by States. Such a suit based on such a general interest could be initiated by anyone, in any state. Katy bar the door in such a case.

Do Colorado’s marijuana laws cost Nebraska taxpayers?

Alternatively, the Plaintiffs may argue their standing comes from the financial harm their states are suffering because of all the extra money they are each spending in enforcing their own laws which prohibit marijuana. That argument must fail, also.

If financial harm done in one state allegedly merely due to the laws of another state failing to comply with federal law creates a basis for states suing each other for injunctive relief, without giving consideration to the underlying federal law at issue, then again, Katy bar the door on lawsuits against the states by anyone over any issue.

Now, the Plaintiffs here may argue their standing comes when they are sustaining harm due to another state having a law which contradicts federal law. But again, this argument places the Plaintiffs back in the position of trying to assert the rights of the federal government. That argument too, is likely to fail.

State Sovereignty and the Tenth Amendment

If this lawsuit is allowed to succeed, it will be a declaration that the Plaintiffs had standing to sue. That will be a dramatic dissolution of state sovereignty. What is the point of creating state boundaries, and separate state legislatures, and other governmental districts, if they are going to be allowed to sue each other over each other’s laws? If it is held that Nebraska and Oklahoma have standing to sue Colorado on this issue, what is to keep Nebraska from suing California over California’s abortion laws? What is to keep California from suing Nebraska when California believes Nebraska’s gun laws are in violation of federal law?

Moreover, as your mother likely said, be careful for what you wish for, as you just might get it. What is going to happen if Nebraska and Oklahoma prevail on this lawsuit? Where does that leave Colorado’s marijuana policy? I argue that it leaves Colorado without a marijuana policy. That is, marijuana may become an unregulated product in Colorado, which is instantly transformed into the wild wild west when it comes to marijuana. Even if that does not happen automatically, the Colorado legislature could certainly remove marijuana from its controlled substances list. In such a case, a joint in Colorado is no different from a pencil. That is certainly not the result the Plaintiff states are going for in this suit.

Therefore, the better way to handle this matter, is for Nebraska and Oklahoma to come up with more efficient ways of handling the increase they allegedly have seen in marijuana trafficking related crimes. For example, cite and release offenders, instead of arresting them and placing them in jail. Give them more reasonable bonds, instead of a bond which is frequently equal to the street value of the drugs seized.

Nebraska and Oklahoma have a problem with the federal government’s decision to not sue the State of Colorado, not with the State of Colorado. As such, this lawsuit is likely to go up in smoke.